United States District Court, E.D. Michigan, Northern Division
ORDER DENYING DEFENDANT’S MOTION FOR
RECONSIDERATION
THOMAS
L. LUDINGTON UNITED STATES DISTRICT JUDGE
On
December 29, 2017, Plaintiff Mikayla West filed a complaint
against Defendant David J. Shulkin, now-former Secretary of
Veterans Affairs. ECF No. 1. On June 1, 2018, Plaintiff filed
an amended complaint substituting current Secretary of
Veterans Affairs, Robert Wilkie, as Defendant.[1] ECF No. 16.
Plaintiff claims that Defendant and his agents racially
discriminated and retaliated against her for engaging in
protected activity under Title VII by terminating her
employment. Id. On May 6, 2019, Defendant filed a
motion for summary judgment. ECF No. 27. The motion was
granted in part and denied in part, dismissing
Plaintiff’s race discrimination claim, but retaining
the retaliation claim. ECF No. 33. Defendant moved for
reconsideration of the Court’s order denying
Defendant’s motion for summary judgment as to
Plaintiff’s retaliation claim. ECF No. 34. Plaintiff
filed a response on August 3, 2019. ECF No. 46.
I.
On or
about February 19, 2016, Plaintiff Mikayla West started
working at the VA Lutz Medical Center in Saginaw, MI as a
Certified Nurse’s Assistant (“CNA”). ECF
No. 27-2 at PageID.362. Plaintiff continued in this position
until August 2016, when she became a Licensed Practical Nurse
(“LPN”) at Lutz. Id. at PageID.362-363.
Plaintiff’s change of position was internal from The
Community Living Center as a CNA to the Specialty Clinic Unit
as a urology and nephrology LPN. Id. Plaintiff was
interviewed for the LPN position in the Specialty Clinic by
Archia Jackson, Chris Tokarski, and Melissa Pritchard.
Id. At the time of this interview, Jackson was the
Nurse Manager, Tokarski was the Assistant Nurse Manager, and
Pritchard was a Registered Nurse (“RN”) working
in the clinic. ECF No. 27-4 at PageID.438, 460.
Plaintiff’s employment as an LPN was subject to an
orientation period for a period to be determined by the nurse
manager of the unit. ECF No. 27-4 at PageID.442.
Shortly
after Plaintiff was hired in the specialty clinic, in
approximately October 2016, nurse manager Jackson was
detailed to the Education Department and Tokarski became the
Acting Nurse Manager. ECF No. 27-4 at PageID.438. During the
ordination period, new employees work with Preceptors. ECF
No. 27-2 at PageID.379. Preceptors train new employees,
shadowing the new employee and providing feedback on the new
employee’s clinical notes. Id. at
PageID.379-380. Preceptors also review the new
employees’ performance every two weeks. ECF No. 27-4 at
PageID.449. During Plaintiff’s orientation period, she
worked with multiple Preceptors, Susan Sobieray, LPN, Terri
Hayes, LPN, Melisa Pritchard, RN, and Cathy Stadler, RN. ECF
No. 27-4 at PageID.443. Plaintiff’s two-week reviews on
the orientation checklist date September 13, 2016, September
27, 2016, October 11, 2016, October 25, 2016, November 21,
2016, December 1, 2016, and December 19, 2016. ECF No. 31-9
at PageID.726. The two-week reviews included positive
comments and a significant amount of constructive criticism
of Plaintiff. Id.
On
October 18, 2016, Plaintiff and Tokarski signed
Plaintiff’s Annual Competency Assessment. ECF No.
31-10. The assessment indicated that Plaintiff had performed
satisfactorily in three of seven categories, Plaintiff had
previously successfully completed three categories, and one
category was not filled out. Id. These seven
categories are all job skills and are not concerned with
Tokarski’s behavioral concerns.
On or
about October 26, 2016, Tokarski and Jackson held a meeting
with Plaintiff to discuss concerns with Plaintiff’s
conduct. ECF No. 27-4 at PageId.445. According to
Tokarski, this meeting arose out of concerns she had
expressed to Jackson about Plaintiff, and that Jackson
suggested that the three have a meeting. Id. A
follow-up email sent after the meeting states that Jackson,
Tokarski, and Plaintiff discussed (1) the first two-week
orientation review, September 13, 2016, (2) a meeting the
following day, September 14, 2016, discussing concerns about
expediency and having the door closed, (3) a September 29,
2016 meeting in which Plaintiff indicated she felt she was
getting into trouble with her co-workers, (4) an incident
involving Plaintiff allegedly failing to obey an order to
cover the Urology area that occurred the week of October 11,
2016, (5) an incident with the Podiatry Nurse that occurred
October 13, 2016, (6) an incident involving the work order
that occurred between October 25–26, 2016, and (7) an
incident regarding monthly chart reviews with Ed Marshall.
ECF No. 27-8 at PageId.470-471.
On
October 27, 2016, Plaintiff replied to the email detailing
the October 26, 2016 meeting between Jackson, Tokarski, and
Plaintiff. ECF No. 27-13 at PageId.479. In her reply
Plaintiff wrote:
I have read this and I don’t agree with any of this I
feel as if all of this is opinionated and based off what
someone else said. I feel like the work that I do here in the
clinic is being overlooked because everyone is looking at the
false statements that are being made about me. My character
is being degraded based off these inaccurate statements. I
really take pride in the work that I do and I go over and
beyond for my patients and their families and I just wish
that my hard work and dedication didn’t go unnoticed.
Id.
Also,
on October 27, 2016 Tokarski received two emails regarding
Plaintiff. The first email, from Sobieray, appears to be an
orientation update for the weeks of October 17 and 24, 2016.
ECF No. 27-10 at PageID.474. In that email Sobieray alleges
Plaintiff stated “[i]t gets so boring especially after
4:30pm” and that “[I] don’t understand why
someone has to stay when there is ‘nothing to
do.’” Id. Sobieray goes on to write that
she “pointed ou[t] there is always something to
do” and lists examples. Id. Sobieray also
shares concerns about Plaintiff, including her need to set-up
a voicemail, need to “initiat[e] duties when there is a
lull, ” aversion to doing EKG/procedures, failure to
follow note-keeping procedures, and an incident involving a
work order. Id. The second email is from Marshall
detailing an incident where he asked Plaintiff if she wanted
to learn about chart reviews and she declined saying “I
was not told that we had to do this.” ECF No. 27-11 at
PageId.476. The following day, on October 28, 2019,
Tokarski forwarded both the Sobieray and Ed Marshall emails
to Ed Lesko, the Human Resources Officer at the Lutz
facility. ECF No. 27-11 at PageID.476; ECF No. 34-1 at
PageID.835. However, while the original Sobieray email was
included as an exhibit in Defendant’s motion for
summary judgment, the forwarded email to Lesko was not
included until the present motion for reconsideration.
On
November 8, 2016, Tokarski had a meeting with Lesko
concerning Plaintiff’s 90-Day Personal Follow-Up
Evaluation. ECF No. 27-18. Defendant principally relied upon
this detail in his motion for reconsideration. Tokarski
handwrote a note in her calendar on November 8, 2016,
“Ed Lesko – asked if I could terminate new
employee said no grounds. Needed to give satisfactory for 90
day. Could not extend or give unsatisfactory.”
Id. In her deposition Tokarski stated,
“[Lesko] told me I could not mark [Plaintiff]
unsatisfactory. As a new management person, I went to HR for
guidance, and I have since learned that I can mark somebody
as unsatisfactory.” ECF No. 27-4 at
PageId.449.
On
November 9, 2016, Plaintiff received a satisfactory review
for her overall performance in her 90-day evaluation. ECF No.
27-19 at PageID.489. Tokarski added a note that stated,
“[b]ased on previous conversations, understanding of
expectations set forward and will continue with
orientation.” Id.
Tokarski
received two emails discussing specific instances of
concerning conduct by Plaintiff on December 6, 2016, one from
Susan Sobieray and one from Terri Hayes. ECF No. 27-22 at
PageID.493; ECF No. 27-23 at PageID.494. There is no evidence
in the motion for summary judgment or the motion for
reconsideration indicating that these emails were forwarded
to Ed Lesko in HR on or near December 6, 2016.
On
December 16, 2016, Plaintiff contacted the EEOC office to
initiate an informal EEOC complaint. ECF No. 27-26 at
PageID.499. Tokarski stated in her deposition that she first
learned about Plaintiff’s EEOC complaint when she was
invited by Cherryl Biggins, who works for ...